Coddington v CBA

[2008] NSWSC 1072

CITATION:	Coddington v CBA [2008] NSWSC 1072
HEARING DATE(S):	17 September 2008
JUDGMENT DATE :	17 September 2008
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Application for separate decision of question refused.
CATCHWORDS:	PROCEDURE [107] - Supreme Court procedure - Practice under Uniform Civil Procedure Rules - Separate decision of questions - When appropriate.
CATEGORY:	Procedural and other rulings
CASES CITED:	Integral Home Loans Pty Limited v Interstar Wholesale Finance Pty Limited [2006] NSWSC 1464 Islamic Association of Western Suburbs Inc v Dr H R K Survery [2007] NSWSC 1425 RSL Veterans’ Retirement Village Limited v NSW Minister for Lands [2006] NSWSC 112 Tepko Pty Limited v Water Board (2001) 206 CLR 1
PARTIES:	Margaret Edwina Coddington (P1) Robert Bruce Coddington (P2) Commonwealth Bank of Australia (D)
FILE NUMBER(S):	SC 4446/08
COUNSEL:	In person (Ps) J Lanser and N J Owens, Solicitors (D)
SOLICITORS:	Self represented (Ps) David Cohen, Solicitor (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 17 SEPTEMBER 2008

4446/06 MARGARET EDWINA CODDINGTON & ANOR v COMMONWEALTH BANK OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: This is an application for an order for the determination of a separate question in proceedings between the plaintiffs, a husband and wife, and the Commonwealth Bank of Australia. The suit is in part a suit to set aside orders in earlier proceedings as having been obtained by forgery and fraud. It is also a suit to set aside agreements between the plaintiffs and the defendant.

2 Mr Owens, of counsel for the defendant, in an earnest submission, has submitted that the questions as to the setting aside of orders, which would be a condition precedent to the plaintiffs' other claims being able to be maintained, are questions which, although they involve to some degree questions of fact, involve questions of fact that are quite separate from other questions of fact in the other proceedings. In relation to one of the bases of the claim to set aside orders, namely, fraud, as opposed to forgery, he goes further and suggests that it is entirely a question of law as to whether what is relied on as constituting a fraud could, in fact, have destroyed the plaintiffs' liability to the defendant.

3 The Bank has expressed, naturally enough, a particular distaste for going into the facts relevant to the subjacent transactions which go back many years, where the Bank may face difficulty in finding documents and in finding witnesses who are relevant to that matter.

4 The principal relevant statement of the law in this area is that, of Kirby and Callinan JJ in Tepko Pty Limited v Water Board (2001) 206 CLR 1 at [168] - [170] where their Honours said:

“ [168] The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P (1999) Aust Torts Reports 81–525 at 66,317 [5] and Fitzgerald JA (1999) Aust Torts Reports 81–525 at 66,325 [37] were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd ( 1999) 198 CLR 180 attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.

[169] The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties’, interests.

[170] Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.”
5 I have followed that approach in various cases, including RSL Veterans’ Retirement Village Limited v NSW Minister for Lands [2006] NSWSC 112 at [6] - [7] where I said:

“[6] Although the parties have very responsibly not asked to be put in the Expedition List, on the basis that the case does not really merit expedition on the usual criteria, there is reason for the early disposal of the proceedings, as the demographic problem inherent in the case is likely to start to take effect over coming months rather than coming years. It appears to me that the case is likely to achieve an earlier complete resolution by refusing the motion than by dividing the case into two parts for separate decision. And, if the other issues do need to be traversed, their inclusion will cause only one additional day’s hearing.

[7] In addition, I should refer to the inherent dangers that constantly surface in divided cases. First, it may be that some more of the evidence is relevant to the construction point than Ms Pepper for the Attorney General suggests. If so, that evidence, will have to be traversed twice if the case is divided. Secondly, all sorts of unforeseen matters arise at divided trials and if there is an unforeseen overlap, that means that the trial should have been kept whole. Caution in the making of separated decision orders has been counselled at the highest appellate level: Tepko Pty Limited v Water Board (2001) 206 CLR 1 at [168] – [170] per Callinan and Kirby JJ.”

6 I should add that I cannot eliminate and the defendant has not eliminated that there may be an overlap of evidence and particularly there may be an overlap of witnesses, particularly the plaintiffs, whose credit will no doubt be under challenge. It would be particularly unfortunate if there were any possibility of the plaintiffs’ credit being separately assessed by different tribunals of fact in two trials of the matter.

7 A bolder view than that in Tepko has since been expressed by Brereton J in Integral Home Loans Pty Limited v Interstar Wholesale Finance Pty Limited [2006] NSWSC 1464 at [5], [6]. I myself recognised that the general principles I have stated above do not mean that there are not cases where a separate trial should be ordered. In Islamic Association of Western Suburbs Inc v Dr H R K Survery [2007] NSWSC 1425 I recognised that fact and referred to what Brereton J had said in Integral Home Loans .

8 Despite those matters the conclusion that I have come to in this case is that this is not a case where the utility, economy and fairness to the parties of a single issue trial are beyond question.

9 For that reason the defendant’s application will be refused.
…oOo…

10 Mr Coddington seeks leave to file on behalf of the plaintiffs a notice of motion which I shall mark as Exhibit A1 upon this application. The orders sought as set out in that motion are not orders appropriate to be dealt with by the Court and I therefore refuse leave to file that notice of motion and have it returnable on short notice.

11 Palmer J has already refused an application by the Coddingtons for an expedited hearing of these proceedings. His Honour did not give reasons for judgment and his reasons for refusal, therefore, do not appear on the file. That order of refusal was made on 5 September 2008. If circumstances have changed sufficiently since that time it would, of course, be open to his Honour to order an expedited hearing, despite the order of 5 September 2008.

12 The plaintiffs should, however, take on board there would have to be some substantial change of circumstances demonstrated for his Honour to do that. Secondly, they must take on board that expedited hearings of substantive proceedings in this Division are granted only by the Expedition Judge, so that the whole question of what matters should be expedited and what not can be dealt with by the one mind. If they wish to pursue a further application for expedition, that should be done by them taking out a motion returnable in the Expedition List for an order for expedition. But they should consider carefully before doing so whether they really are able to show the Court circumstances changed from those that prevailed when Palmer J refused the application on 5 September 2008.


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